No Justice: The Status of Transgender Anti-Discrimination In The United States

We’re gonna do Fetish Friday tomorrow this week, on Saturday. The reason’s real simple: I found a topic I wanted to write about that concerns some stuff that doesn’t fit the “Fetish” theme (Note: I also heard you guys on the polygamy thing, and the second part of that will not be on a Fetish Friday either. I’ll post that separately). It’s somewhat timely given a bit of shit that blew up in the Twitter-sphere, and the lovely post that came in on Wednesday from Ms. Tanner, who wrote about the harm that jokes can do to members of marginalized groups.

Today I’m going to talk about some basic legal matters and legislation that affect the transgender community. I think pretty much all transgender folks are aware of this stuff, and it’s really, really basic, but other people (including myself) don’t seem to be aware of the level of discrimination a transgender person can face, and how throughout the vast majority of this country it’s completely legal for a transgender person to be denied service, housing, or employment simply for being themselves. So, today, I’m gonna take a minute and piggy-back on Ms. Tanner’s explanation of why a joke isn’t a joke to explain why people have a right to be upset when they feel they’re being lessened to a cheap punchline. It’s because, quite frankly, we already treat them as less deserving than everyone else under law.

A couple quick caveats:

No jokes (well, maybe a couple jokes, just not at the expense of anyone), just some talk.

I’ll be frank: I have transgender friends, and I was tangentially aware of most of this before looking into things for this post, but I don’t think the unfairness of this ever hit me fully until I started on the drafts of this. I’m learning, please be a bit patient with me.

Finally, today is an introduction to these issues and a bomber’s-sight overview. It isn’t comprehensive and certainly does not address all of the issues. I’ll continue educating myself on some of these topics and digging into other matters, such as identification, estate/death matters, marriage, etc. I simply am not able to cover all of this in a single post. You should take this as a warning as to how much there is to talk about in regards to the current state of law as it relates to transgender persons: there are a lot of issues.

So, let’s get to it.

FEDERAL LAW SUCKS.

First things first, we need to recognize the status of the transgender community under federal law. Transgender individuals have only very minimal protection under our federal law at current. While the United States ostensibly provides equal protection under law for all people under the Fourteenth Amendment, that Amendment has been interpreted to provide only the same level of protection under law that a transgender person receives simply by existing. There is no heightened protection, such as we see in federal law for discrimination based on sex, national origin, race, religion, etc., and transgender is specifically not mentioned in things like the Fair Housing Act or the Equal Employment Opportunity Act, both of which strictly define what is and isn’t a protected class under federal law. 42 U.S.C. § 3604; 42 U.S.C. § 2000-e. The end result of this is, technically, under law, transgender individuals receive no protection at the federal level from discrimination in areas such as employment, housing (except public housing, thank you HUD), and many areas that fall under “public accommodations” (restaurants, hotels, etc.).

That doesn’t even begin to dig into some other federal issues, such as the fact that (as anyone who reads the news knows) the military could discharge a transgender service member as being psychologically unfit for duty, garnering them something less than an honorable discharge. Additionally, given that the military was and is a valid road out of poverty for many, the ban on transgender personnel effectively shut that road down, trapping many in poverty. Essentially, if you wanted to have the ability to go fight and die for your country, you had to be willing to do it as the gender you didn’t feel, deep down in that place where we know things about ourselves, was yours.

IT DID GET BETTER FOR A BIT.

There has been some change to this, mostly under the Obama Presidency, when a series of Agency decisions and Executive Orders gave very limited protection to transgender individuals in certain areas. For example, President Obama expanded the protections of the Equal Employment Opportunity Act (hereinafter “EEOA”) to bar employment discrimination against transgender individuals if they are also government employees (meaning, in this case, federal employees) or the employees of federal contractors. While this did not extend the protections of the EEOA to private employees, the Department of Justice in December of 2014 made it clear that it would no longer argue that transgender discrimination did not fall into the category of prohibited discrimination with a policy memo issued on December 15, 2014. The effect of this was a signaling to all government agencies that the administration was open to expanding the laws to cover transgender protection in crucial areas, and that governments should no longer rely on the defense of “it’s not specifically mentioned, so it doesn’t apply” in weighing and assessing complaints of discrimination, and pursuing claims of discrimination.

On the military front, there was the lifting of the ban on transgender service members, allowing the men and women (and others) of our country to service openly and freely. This, the vast majority of us with actual souls and consciences decided, was a good thing. It stopped the system of “general” and “other than honorable” discharges, which could result in transgender individuals losing their access to VA benefits, and opened up a whole new career path to the less privileged transgender individuals out there.

THEN WE ELECTED AN ORANGE JACKASS.

In other words, things were legally getting better. But there’s a problem with Executive Orders and administrative memoranda: they can be revoked, repealed, or replaced. They have the force of law only to the extent that the Executive and the agencies beholden to that Executive wish them to. Otherwise, a new administration can revoke or replace each and every one.

And Obama’s not around anymore.

We can all guess what the the Trump Administration has chosen to do with these protections and changes, right?

Right?

BUT SOME STATES ARE WILLING TO DO WHAT THE FEDS AREN’T ANYMORE.

On the state level, things are a little more complicated, and that’s because while a state can’t give you less protection than is required by federal law, it can certainly give you more protection than is required by federal law. While the federal government may be wringing its hands on issues of basic human rights and playing to a base that wants to judge the worth of a person based on their gender identity or pronouns, several states have made it clear that shit won’t fly for them. As of right now, 21 of the 50 states make it illegal, statewide, for anyone to discriminate against transgender persons in the areas of employment, housing, or public accommodations. This state legislation grants transgender individuals the same rights and protection from discrimination enjoyed by racial minorities, immigrants, or people of differing religions.

So, in case you need to get the hell out of Dodge or want to show that acceptance and recognition of basic rights helps the economy, go spend some money in Minnesota, Rhode Island, New Mexico, California, Washington D.C., Maine, Illinois, Hawaii, Washington, New Jersey, Vermont, Oregon, Iowa, Colorado, Nevada, Connecticut, Massachusetts, Delaware, Maryland, or New York.

Also, a quick note on states:

There are marriage issues and void/voidability  issues still present in pre-Obergefell transgender marriages, but those are complex matters of state law, and I anticipate speaking at length about that in a future post, once I get a chance to actually dig through the research.

BUT UTAH’S STILL BEING STINGY ABOUT LETTING TRANSGENDER FOLKS STAY AT THE MOTEL 6.

While Utah has protections for housing and employment, it doesn’t cover public accommodations. So some dickhead in Salt Lake City could theoretically refuse to rent you a hotel room or serve you in a restaurant just because you refuse to lie to yourself and want to live as you are and not how others want you.

CITIES CAN GET INTO THE ACT, TOO.

Here’s the thing about law: we have a pecking order. Okay, I said states can’t give you less protection than a federal law. This is because of something we call “Supremacy,” meaning that the higher government’s laws will always set a baseline. Without getting into too much legal mumbo-jumbo, the idea is there federal law is always supreme over the state law, and then the state law is supreme over the local ordinances and stuff. But just because there’s a law that sets a baseline, either on the state or federal level, doesn’t mean lesser government units can’t make more protective laws so long as the baseline isn’t in an area of “total exclusion” (the way the laws are written it’s clear the bigger government unit intended to be the only one able to say shit about the subject…think immigration as the classic example. Only the federal government can make immigration policy).

So where neither the federal government nor the state government has seen fit to provide protection to transgender individuals in seeking the basic human rights and necessities to live like people without having to hide who they are, some municipal governments have stepped in and said “Back the fuck up, we’re not going to let this happen. People are people, yo.” There are way too many to list, and the extent of their ordinances differ wildly, but as of January 28, 2017 there were roughly (or at least) 225 cities and counties that provided employment protection to transgender individuals. There’s a full list of those cities and counties in that link right there. I’ll also note that if you look at that list, you’ll see several that are in states which already have statewide protections. Those cities are likely early adopters, doing what’s just fucking right to protect their constituents before the state said they had to. Give them extra dollars.

SO 21 STATES AND 225 MUNICIPAL GOVERNMENTS! PRETTY GOOD!

The hell it is.

I want to congratulate those states, but let’s be clear: there are 50 states, 3,007 counties, and 35,886 municipal governments in the U.S.

If you live outside of the 225 municipalities or 21 states that acknowledge transgender people are valid and deserve protection from the bias and discrimination of others, and that such protection is an absolute necessity, you damn well better not be transgender. Otherwise you can be denied housing, work, and public accommodations because the federal law drafted in the 1960’s doesn’t specifically mention you and our current Administration has decided you’re not really a person with a valid existence just, “a confused person.”

WHAT CAN WE DO?

You can petition and influence your federal lawmakers to recognize that transgender people need protection. But that’s a long and tedious process where your gender identity and your personhood is going to get raked through the mud. That’s just politics. It’s shitty.

Locally, you need to be working in your community to get these protections enacted in the city or county where you live, if they aren’t already. Vote in off-year elections for city council and mayor Research your candidates and support the ones that support transgender rights. Be involved in your local community and local politics. In off-years, you have the best chance to have your voice heard locally in the place where you live and work, and make people see you for what you are: a person deserving of respect, regardless of gender identity.

WHAT ARE LAWYERS AND SHIT DOING?

There are a number of cases addressing transgender rights working their way through the court system on the way to the Supreme Court of the United States. These have been ongoing for a bit, and there’s a definite circuit split on the issue (a circuit split is where two appellate circuits interpret the same law a different way). In circuit split situations, as we saw with Obergefell v. Hodges, SCOTUS will step in where the question is unresolved and has wide-ranging implications. Here the issue will be “should the federal protections under the EEOA and other federal acts be interpreted to provide protection to transgender (and other LGBTQ+) folks despite not being explicitly mentioned in the statute.” Here’s the positive on that:

If it gets there in the next year or two, the composition of the court hearing and deciding the issue will be basically the same as it was when Obergefell came in front of the court. Obergefell was close, but the only real swing vote on the court is Kennedy, and Kennedy keeps coming down on the side of human rights and social progress.

If it takes longer?

…Well…

Let’s just hope RBG’s health holds up, okay?

CONCLUSON

There are…a lot of other issues out there that relate to Transgender issues and the law. There are name changes, gender identification changes in official records, issues with death (and life), and many, many other ways Transgender folks face legal issues or threats that just aren’t common to society as a whole, or even to the other members of the LGBTQ+.

In fact, that state section we talked about? There are 7 states that offer some form of protection from discrimination in either public or private employment on the basis of sexual orientation, but do not do so on the basis of gender identity, and there are certainly local laws that do the same. Even in granting protection to some marginalized groups, legislators can unfairly ignore the needs of the transgender community and their right to live free from fear of job loss, homelessness, or denial of services.

I’m not detailing all of those issues here, because I’m still learning.

I’m going to keep learning, too, because we all should. If I think I can write on a topic related to this issue and the law, I will. Information is power, especially when it comes to affecting change.

But in relation to jokes and people being touchy, I understand slightly more today why than I did yesterday or the day before. I can’t imagine living with the knowledge my federal government, and the majority of state and local governments, don’t acknowledge my right to have a job, home, or the ability to eat at a restaurant should be secured…and refuse to acknowledge that simply because I want to be free to be comfortable to live within my own skin.

We should keep that in mind, cisgender folks. Lord knows I’ll try to from here on out.

-BB

Author: BoozyBarrister

From a riverboat to a law office, the BoozyBarrister is a civil litigator with a bad attitude.